How Kenya took on the International Criminal Court

Kenyan President Uhuru Kenyatta at the African Union ahead of the October 2013 special summit on the continent's relationship with the International Criminal Court.

Credit:
Elias Asmare

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NAIROBI, Kenya — The International Criminal Court’s crimes-against-humanity case against Kenyan President Uhuru Kenyatta is on the verge of collapse. Regardless of the merits of the case, the lack of a full trial is bad news for both the ICC and the thousands of victims who have been waiting for justice. But it’s a big victory for Kenya’s current government, which both prosecutor Fatou Bensouda’s office and foreign analysts have accused of working actively to undermine justice.

It’s good news for other nations' governments looking to beat charges, as well, because inadvertently or not, the Kenyan government appears to have just written the playbook for beating the ICC.

More than 1,100 people died in politically motivated tribal violence following Kenya’s disputed elections in 2007, that set Kalenjins and Luos against Kikuyus. After Kenya’s National Assembly declined to set up a special tribunal as requested by the commission investigating the violence, commission chairman Philip Waki, a Kenyan judge, sent a list of suspected perpetrators to the ICC. A handful of Kenyans were indicted for crimes against humanity, among them the powerful politicians Uhuru Kenyatta, a Kikuyu, and William Ruto, a Kalenjin. Both men deny the charges.

Kenyatta and Ruto, who had been on opposing sides during the violence, then formed an unlikely alliance ahead of the Kenyan elections in 2013, while Kenya’s government was still dragging its feet over the ICC charges.

Despite allegations of rigging, their Jubilee Coalition was declared winner. As president and deputy Kenyatta and Ruto became the two most powerful men in the country.

Kenya's 4th President Uhuru Kenyatta receives a symbolic sword of power from outgoing President Mwai Kibaki after he was sworn into office on April 9, 2013 in Nairobi. (Tony Karumba/AFP/Getty Images)

Observers say that is when the real work to undermine the ICC began.

“Nothing has been happening in government except the effort to derail the ICC,” said James Gondi, a human rights activist with the civil society coalition Kenyans for Peace with Truth and Justice.

All the while government attention has been firmly on The Hague where Kenyatta has won a string of victories, leaving the ICC damaged and its weaknesses exposed.

The first clear sign that things were going badly wrong for the ICC came in March 2013. As Kenya waited for election results, charges were dropped against Francis Muthaura, Kenyatta’s co-accused, with the prosecution citing witness intimidation, deaths, and killings. Kenyatta’s defense lawyers responded with the counter-allegation that prosecution witnesses had been “coached.”

A few months earlier the prosecution had warned darkly that “attempts to identify, locate and interfere with prosecution witnesses are escalating.”

Chief Prosecutor Fatou Bensouda said she was forced to drop the case after a key witness proved unreliable, recanting part of his testimony and saying he had accepted bribes from people claiming to act on behalf of Muthaura and Kenyatta.

Bensouda added that there was “a limited pool of potential witnesses, several of whom have been killed or died since the 2007-2008 post-election violence.”

One Kenyan man, Walter Barasa, faces extradition to The Hague to face charges of offering bribes to prosecution witnesses to stop them testifying against Ruto.

Witness location and intimidation were made easier after a list of witnesses who gave evidence to human rights groups in the early investigations, and thus who were likely to be called as witnesses for the ICC trial, was reportedly auctioned off in 2010.

The vice chairman of the Kenyan National Commission on Human Rights resigned in protest after the alleged leak.

Witnesses and potential witnesses in the Kenyatta case are largely “insiders,” members of the criminal Mungiki tribal sect who were allegedly paid and unleashed by Kenyatta to carry out revenge attacks against Luos and Kalenjins in January 2008.

Numerous senior Mungiki members have been murdered, both before and since the 2007 elections. Some have mysteriously disappeared. Others were shot dead in public places, one on a busy street in the capital, Nairobi.

International Criminal Court Chief Prosecutor Fatou Bensouda on a visit in October 2012 to the hotspots of the post-election violence in Kenya. (Simon Maina/AFP/Getty Images)

Court documents illustrate the extent of alleged witness tampering. “Mungiki members said to have interacted with the accused in person during the PEV were killed or forcibly disappeared in an apparent clean-up operation after the violence,” wrote the ICC prosecution in January in response to questions from Fergal Gaynor, legal representative for Kenyan victims of the post-election violence.

In the public filing the prosecution also referred to “the climate of fear” among witnesses who say testifying “would expose them or their families to retaliation.”

But alleged tampering with actual and potential witnesses was not the sole strategy observers believe the Kenyan government deployed to ensure the case crumbled. “This has been about as comprehensive a process of undermining as you can imagine,” said Phil Clark, a lecturer in international politics at London’s School of Oriental and African Studies (SOAS).

Clark said Kenya has employed “a multipronged process” that included obstruction, diplomacy and — critically — victory in the 2013 elections that put the full powers of the state in the hands of the accused.

“Kenya realized it could play this game at the international level through diplomacy, at the national level during the elections and at the community level through deliberate targeting of individuals,” said Clark.

Kenyatta and Ruto’s election campaign, ironically with the help of a team of British PR advisers, cast the two men as patriotic defenders of national honor and sovereignty under attack by a neocolonial, Western court.

“They turned upside-down the notion of the victim, making the accused into the victims,” said Maina Kiai, a prominent Kenyan human rights defender.

A supporter of Kenyatta, then finance minister, during a demonstration in Nairobi on 2010.(Simon Maina/AFP/Getty Images)

“Kenya very successfully tapped into the rhetoric of the court as a neocolonial tool and that’s a very salable narrative regardless of whether it’s true or not,” said Mark Kersten, a researcher at the London School of Economics and publisher of the Justice in Conflict blog.

The election was thus bent into a referendum on the ICC. The indictment that Kenyatta had called “a personal challenge” before the vote was made political and national.

The results were disastrous for the ICC, which relies on cooperation within the country where the crimes took place when collecting evidence. A domestic injunction prevented the prosecution from interviewing several security officials. Government records were provided reluctantly and then often in huge quantities but lacking the documents specifically relating to the election and post-election periods.

On occasion “falsified” records were provided. Mobile telephone companies, operating under government license in Kenya, were “unwilling,” the ICC prosecutor’s office said in its response to Gaynor, to provide data, including call logs and records of mobile money payments.

“The game has been non-cooperation under the guise of cooperation,” Kiai said.

And the ICC was not ready for this sort of play, says Gondi. “The prosecution underestimated the ability of Kenyan elites to marshal the entire resources of the state against it.”

“There was an institutional view that Africa was ripe for the picking, that cases would be easy and quick,” agreed Clark. “The ICC underestimated just how canny these African states can be and how savvy African governments have become.”

President Omar al-Bashir of Sudan is the only other head of state to be indicted by the ICC. His indictment in March 2009 featured two counts of war crimes and five counts of crimes against humanity in the western region of Darfur. A subsequent charge of three counts of genocide was added in 2010. Bashir’s refusal to recognize the court meant he was issued with an arrest warrant.

Kenya’s leaders have stopped short of outright defiance and so have avoided censure. “They are not pariahs,” Kersten said.

International Monetary Fund Managing Director Christine Lagarde shakes hands with Kenya's President Uhuru Kenyatta at the State Lodge prior to a dinner in January in Mombasa, Kenya. (Stephen Jaffe/AFP/Getty Images)

Kersten says Kenya “identified early on” that Western countries wouldn’t put justice for victims of political violence in Kenya ahead of their own economic and security interests in the country. “They wouldn’t put their money where their mouth is when it comes to the ICC,” he said.

Kenya is home to tens of thousands of Western expatriates. European and American businesses invest in the country, make profits and pay taxes. The British army has a perpetual in-country training program for its soldiers and the US regards Kenya, which shares a long border with Somalia, as an indispensable ally in the forever war against Islamic terrorism.

“Self-interest trumps justice,” Gondi said. “Western countries had very strong messages about ‘consequences’ if Kenyatta and Ruto were elected,” he said, referring to a warning issued before the 2013 election by Johnnie Carson, then President Obama’s top diplomat for Africa. “Now they cozy up. They want to get back to business as usual and move on.”

In May, it became clear that Kenya’s anti-ICC rhetoric had won over the African Union regional bloc as well, when Ethiopia’s Prime Minister Hailemariam Desalegn accused the ICC of “race hunting.” The AU convened a special summit in October to discuss withdrawing from the ICC entirely. Though withdrawal en masse lacked the necessary support, members called for sitting African heads of state to be granted immunity.

Patrons eat at a restaurant in Nairobi on Sept. 5, 2013 as local television broadcasts live proceedings of the Kenyan parliament discussion on pulling out of the International Criminal Court. (Simon Maina/AFP/Getty Images)

Kenya won another battle in November, convincing the annual gathering of ICC member states known as the Assembly of States Parties to change the rules to allow Kenyatta and Ruto to skip almost all hearings (Kenya had previously sought a deferral from the UN Security Council, which was not granted).

The Kenya case has been damaging for the court but the ICC process has also been damaging to Kenyan society, dashing hopes for accountability on a national level. “Discussions about justice are discussions about the ICC. There’s no other conversation,” Kersten said.

What that likely means is if the ICC cannot deliver justice to the victims of the post-election violence then no one will. There are no other options for prosecution of suspected perpetrators on the table, nor even being discussed. “There is no reasonable prospect of a Kenyatta trial in the near future and no reasonable prospect of justice in Kenya at all,” Gaynor said.

Last month Kenya’s Director of Public Prosecutions Keriako Tobiko said of the more than 4,576 cases opened in the aftermath of the 2007 post-election violence, none was deemed “prosecutable” due to lack of evidence.

In December the prosecutor Bensouda requested an adjournment in the ICC case after two more “key witnesses” withdrew, one saying he was no longer willing to testify, the other saying he had lied in his original evidence.

At the last ICC hearing in February prosecution lawyers sounded exasperated and forlorn. They said Kenya’s “pure obstructionism” meant they had not been given access to Kenyatta’s financial records, which they hope might reveal that he paid for Mungiki attacks six years ago.

In previous public statements, Kenya’s Attorney General Githu Muigai has denied obstructing the prosecution and government spokesman Manoah Esipisu has described claims of lack of cooperation as “dishonest.” Esipisu did not respond to GlobalPost’s request for comment earlier this week.

The lack of witnesses prepared to give evidence means the case against Kenyatta appears to be about to collapse, or at least to begin an indefinite process of deferral. Kenya, it seems, has taken on international justice and won. And in doing so has written an effective playbook for beating the ICC. “Other high level suspects will be watching and saying ‘We can use the same tactics,’” Clark said.

Repercussions may yet be felt at home. While Kenyatta looks set to avoid trial his co-accused, deputy and political ally Ruto has been in the midst of his since September. This was not the deal. They were supposed to be in it, or out of it, together.

Diplomats and political analysts here are concerned that an alliance designed to keep both men out of the dock may now fall apart now with potentially dangerous consequences.

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